01A03803
08-23-2002
Roy E. Chumley, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Roy E. Chumley v. Department of the Treasury
01A03803
08-23-02
.
Roy E. Chumley,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A03803
Agency Nos. TD-98-2297 & TD-99-2046
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1964, as amended, 29 U.S.C. 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms in part and reverses in part the agency's final
decision.
The record reveals that during the relevant time, complainant was
employed as a Customs Inspector, GS-1890-11/4 at the agency's US
Customs Service, WTX-CMC�Port of El Paso, Texas facility. Complainant
sought EEO counseling and subsequently filed two formal complaints on
September 11, 1998, and November 2, 1998 respectively, claiming that
he was discriminated against on the bases of race (African-American),
national origin (African-American), color (Black) sex (male), age
(D.O.B. 03/21/46), and reprisal for prior EEO activity when (1) his name
was certified for selection consideration with an overall score of (28.67)
by the agency's application Evaluation Board, but he was not selected
for a position as a Senior Customs Inspector, GS-1980-12, announced in
Vacancy No. WETEX/98-003BB, in June and October 1998; and (2) the agency's
Operation Brass Ring award was not presented to him on or about September
29, 1998 when his co-workers received their awards. Complainant also
contended that African-Americans were under-represented in supervisory
positions in the facility, and that the locally created selection matrix
was used arbitrarily by local managers to mask their personal biases.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In Claim 1, the individuals certified for selection consideration were
interviewed by a three-person panel (Panel) made up of Chief Inspectors
who had attained the GS-13 level. The Panel conducted oral interviews
and rated the candidates on their answers to ten job related questions.
After the oral interviews, candidates then had to choose from one of
several situational questions, and provide a written response, which was
later scored by the Panel. The raw score that each candidate received
from the Panel, which could range from below 100 to 150 points, was
then forwarded onto the Responsible Management Official (RMO), who
converted the raw score to a scaled score of 1-5 points for use in
the local selection matrix which ranked all the candidates that were
interviewed. All the selectees received 5 points on this portion of the
rating, whereas, complainant received 4 points. The RMO then rated the
candidates' education level and experience with the agency, which allowed
for up to an additional 7 points. Therefore, it was possible for each
candidate to score a maximum of 12 points overall. When combining the
scores from the Panel with the rating arrived at by the RMO, the overall
numerical scores of the selectees were 12, 11.5, 10, 9.5, 9.5 and 9.5,
and respective rankings of 1, 2, 3, 4, 5, and 6. The record shows that
during the initial selection, a forty-two-year-old African-American
male (Selectee 2) was chosen, with a score of 11.5, however he declined
the offer as he had accepted another position outside the facility.<1>
The RMO then selected five candidates to fill the vacancies, two were
Caucasian and three were Hispanic. The ages of the selectees were 40,
52, 41, 37, and 49 respectively. The complainant had an overall score
of 8.5, as he received 4 points for the oral and written portion of his
application, 2.5 points for his experience with the agency, and 2 points
for his education. This score tied him for eighth place.
In Claim 2, complainant was told to report to an award ceremony around
the end of September, or early October 1998, which was being held to
recognize employees who had made at least one seizure in �Operation
Brass Ring,� a special operation to crack down on drug trafficking.<2>
Complainant indicated that during the ceremony the RMO, who he had
previously named in Claim 1, �glared directly at him� and looked �visibly
upset,� and that she continued to glare at him when he looked at her
later in the presentation. Complainant then asserted that even though
he met the qualifications to receive an award, his name was not called
at the ceremony. Complainant believed that this was overt reprisal for
his prior EEO complaint, which he had formally filed only three weeks
earlier. Complainant indicated that he did not receive his award until
several days later, at which time the Chief Inspector came to his duty
station, told complainant that his award had been misplaced on the day
of the presentation, handed him the award, and left with a smile on
her face.<3> Complainant also indicated that he later found out that
another employee who had also filed an EEO complaint against the RMO
and the Chief Inspector also did not have his name called because his
award was similarly misplaced.
In its FAD on Claim 1, the agency concluded that complainant established a
prima facie case of race, color, national origin and age, but failed
to establish a prima facie case of sex discrimination because all five
selectees were male. The agency found that after considering the Panel's
interview, the experience and education of the candidates, complainant was
not selected because he did not score as many points as those selected.
Further, the agency found that while complainant made a valid point
that African-Americans were under-represented in supervisory positions,
an offer was made to an African-American, but he declined the position.
In Claim 2, the agency relied on the statement made by the Chief Inspector
that out of approximately 400 awards given out at five locations
covering employees of all work shifts, only two errors were made in
the distribution. Further she attested that �somehow complainant's
certificate got in the wrong box,� but that complainant received the
award several days later. The agency then concluded that even though
complainant had identified another employee with a prior EEO complaint
whose award was also �misplaced,� there was no evidence that retaliation
was the reason that complainant did not publicly receive the award.
On appeal, complainant contends in relevant part that the agency's
articulated reasons for his non-selection were pretextual because the
agency failed to base its selection decision on the numerical rankings
assigned by the Evaluating Board Rating Sheet, and instead used an
alternate selection method to choose the selectees; used a scoring system
for the Panel that was subjective; and the RMO devalued his military
experience.<4> Further, the complainant contends that the agency failed
to show that its reason for not timely issuing his award was not a pretext
for reprisal. The agency asks that we affirm its FAD. In addition, the
agency argues for the first time on appeal that complainant failed to
show that he was aggrieved when he did not receive his award during the
award ceremony; that Claim 2 was moot because complainant later received
the award; and, that complainant was not entitled to compensatory damages
as he offered no evidence to substantiate a claim for such damages.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), we concur with the
agency's conclusion that complainant established prima facie cases
of race, color, national origin, reprisal and age discrimination.
The agency must now articulate a legitimate, nondiscriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Here the agency found that in Claim 1 complainant
was not selected in either the first or second round of selections
because after rating the Panel interview, agency work experience, and
education of the candidates, complainant did not score as many points as
those selected in either of the two selections completed by the agency.
We find that the record supports the agency finding that the selectees
scored 9.5 or higher in the final rating whereas complainant scored
an 8.5. Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Here complainant
contended that African-Americans were under-represented in supervisory
positions. In response, the agency concluded that while complainant
made a valid point that African-Americans were under-represented in
supervisory positions, an offer was made to an African-American during
the selection, but he declined the position. Complainant contended
that this articulation was pretextual because the African-American
selectee had informed the selection panel prior to his interview that
he planned to accept a position outside of the facility even though
there was a possibility that he would be promoted inside the facility.
In response, the RMO indicated that she assumed that if an employee has
a choice between a promotion at a current duty station and a lateral
transfer to another port, that the employee would pick the promotion.
Complainant has not shown that this was an unreasonable assumption, or
based on a discriminatory motive. Therefore, we find that complainant
was not discriminated against because of his age, race, color or national
origin when he was twice not selected for the Senior Customs Inspector
position.
In response to complainant's contentions on appeal, we first note that
the agency was not obligated to select from, or to base its selection
decision solely on, the numerical rankings assigned by the Evaluating
Board Rating Sheet. In fact, as noted in the agency's Merit Promotion
Plan, the RMO had the option of making a selection without regard to point
scores within the best qualified group, by using an alternate selection
method to choose the selectees at it did here. See Report Of Investigation
p. 97. In regard to complainant's contention that the scoring system
used by the Panel was too subjective, a review of the record does
not support complainant's assertion; rather, the evidence supports a
conclusion that the Panelists independently rated the candidates based
on their responses to work related questions during an oral interview.
We also note that prior to the interview, all the candidates had been
given an opportunity to review the interview questions and take notes on
those questions to better prepare for their interview. While complainant
may not have scored as high as he would have liked on the oral interview,
he failed in his burden to show that his lower score was due to any of his
protected bases. Complainant also contends that because the agency did
not credit his military management experience, he lost a crucial point,
which would otherwise have raised his overall score from an 8.5 to a
9.5 and ensured his selection for the position at issue.<5> However,
complainant failed to show that the RMO had a discriminatory motive
for not crediting his military experience; moreover, all candidates,
including the selectees, were impacted by management's decision not to
credit outside experience.
In Claim 2, complainant contends that because of his prior EEO activity,
he was publicly embarrassed when he was not given an award to which
he was entitled until several days after the award ceremony. Here the
agency found that complainant did not receive his award until after the
ceremony because the award was misplaced. Complainant can establish a
prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, supra and Hochstadt v. Worcester Foundation for Experimental
Biology, supra, and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of her protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action. See also, Whitmire v. Air Force, EEOC Request No. 01A00340
(Sept. 25, 2000). Here the agency found that complainant had established
a prima facie case of reprisal as complainant filed his formal complaint
for Claim 1 on September 11, 1998, and that the RMO and the Chief
Inspector were aware that the complaint was filed as they had been
contacted during the informal processing of his complaint. We find
that complainant established that a temporal nexus existed due to the
recency of the filing in relation to the awards ceremony. Further we
find that the agency's explanation that �somehow complainant's award
got in the wrong box� is not worthy of belief, in light of how carefully
the Chief Inspector had coordinated the distribution of the awards for
the other employees, including those who were off duty, out sick, or on
annual leave. We also note that the only other employee who did not
receive his award during the ceremony had prior EEO activity as well.
For these reasons, we find that the agency's explanation was pretextual.
The agency failed to give complainant the award in order to harass him
and deny him recognition by his peers for his achievements. Therefore,
we find that the agency retaliated against complainant when he was not
issued his award during the award ceremony.
On appeal the agency argued that complainant's claim regarding the delayed
delivery of his award was moot. The Commission has noted that voluntary
compliance with and effective enforcement of the anti-discrimination
statutes depends in large part on the initiative of individuals to oppose
employment practices that they reasonably believe to be unlawful, by
filing charges of discrimination. If retaliation for such activities
were permitted to go unremedied, it would have a chilling effect
upon the willingness of individuals to speak out against employment
discrimination or to participate in the EEOC's administrative process
or other employment discrimination proceedings. EEOC Compliance Manual,
at 8-1 to 8-2 (rev. 5/20/98). We find that the Chief Inspector's action
in �misplacing� complainant's award was intended to have a chilling
effect on complainant and other employees, in that he was embarrassed
and denied recognition in front of his peers because he participated
in EEO activity. Further, we note that an issue is not moot merely
because complainant received his award on a later date if the effects of
the discriminatory conduct have not been completely eradicated. Indeed,
here complainant indicated that he suffered public humiliation in front of
hundreds of agents that will never be eradicated. The agency also argued
the claim was moot because complainant provided no evidence to support a
claim for compensatory damages. However, the Commission has previously
ruled that an allegation which states a claim will not be rendered moot
where a complainant alleges compensatory damages and the agency has not
allowed the complainant an opportunity to prove his entitlement to such
damages. See Darby v. Department of the Army, EEOC Request No. 05970836
(August 14, 1997) Yancey v. Dept. of Health and Human Services, EEOC
Request No. 05931195 (July 20, 1994). Therefore, complainant should have
been allowed to submit evidence of compensatory damages.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency finding
of no discrimination on Claim 1, reverse its finding on Claim 2, and
remand this case to the agency to take remedial actions in accordance
with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Conduct a supplemental investigation to determine whether complainant
is entitled to compensatory damages for the delay in issuing his award
as requested during the investigation of his complaint. If complainant
is seeking attorney's fees, he shall, through counsel, submit a
request for attorney's fees in accordance with the "Attorney's Fees"
paragraph set forth below. Within fifteen (15) days of the date that
this decision becomes final, the agency shall notify complainant of his
right to present evidence to the agency regarding his claim for damages,
including medical bills and statements from family members and doctors.
Complainant shall provide objective evidence that the damages in question
were a result of the agency's discrimination and of the amount of the
claimed damages.<6> Thereafter the agency shall issue a final decision
on complainant's claims for compensatory damages and attorney's fees.
The supplemental investigation and issuance of the final decision must
be completed within sixty (60) calendar days of the date this decision
becomes final. If there is a dispute regarding the exact amount of
compensatory damages and/or attorney's fees, the agency shall issue a
check to the complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The complainant may petition for enforcement or clarification
of the amount in dispute. The petition for enforcement or clarification
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
2. The agency shall conduct (8) hours of training for the Responsible
Management Officials herein, including RMO and the Chief Inspector,
addressing their responsibilities under equal employment opportunity law.
The training shall place special emphasis on preventing retaliation.
3. The agency shall consider appropriate disciplinary action against
the Responsible Management Officials herein, including RMO and the
Chief Inspector, in connection with the delay in issuing the award.
The agency shall report its decision to the Compliance Officer. If the
agency decides to take disciplinary action, it shall identify in its
report of compliance the action taken. If the agency decides not to take
disciplinary action, it shall set forth in its report of compliance the
reason(s) for its decision not to impose discipline.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Customs Service, WTX-CMC�Port
of El Paso, Texas facility copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 2000). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___08-23-02_______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ________ which found that a
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or candidate for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The U.S. Customs Service, WTX-CMC�Port of El Paso, Texas facility supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The U.S. Customs Service, WTX-CMC�Port of El Paso, Texas facility was
found to have unlawfully retaliated against an employee for participating
the in EEO process. The agency shall pay appropriate compensatory damages
and shall provide appropriate training to the responsible officials
and ensure that appropriate steps are taken to prevent a recurrence
of the unlawful discrimination. The U.S. Customs Service, WTX-CMC�Port
of El Paso, Texas facility will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The U.S. Customs Service, WTX-CMC�Port of El Paso, Texas facility will
not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
______________________________
Date Posted: ___________________
Posting Expires: ________________
29 C.F.R. Part 1614
1The position was then offered to Selectee 3, a 37 year old Hispanic male.
2Complainant indicated that the award ceremony took place around September
28 or 29, whereas the agency indicated that it occurred around October
2, 1998.
3The RMO, who previously made the selections in Claim 1, delegated the
responsibility for coordinating and distributing the Operation Brass Ring
awards to a Chief Inspector. This Chief Inspector was also a Panelist
in the Claim 1 non-selections.
4In his brief on appeal, complainant agreed with the agency's conclusion
that he was not discriminated against based on his sex. Therefore,
this issue will not be addressed herein.
5We also note that if complainant had completed an undergraduate degree,
he could have gained an additional point.
6The Commission's decision in Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993), describes in detail the type of evidence
which should be presented in support of a claim for compensatory damages.